Finality and Attorney Fee Issues
| Publication year | 2014 |
| Pages | 89 |
| Citation | Vol. 43 No. 7 Pg. 89 |
Appellate Practice
Finality and Attorney Fee Issues
By Christina F. Gomez
This Appellate Practice column will publish quarterly, usually in the January, April, June, and November issues. Marcy G. Glenn-mglenn@hollandhart.com, Christina F. Gomez— cgomez@hollandhart.com, and Stephen G. Masciocchi—smasciocchi@hollandhart.com are partners with the law firm of Holland & Hart LLP, and are members of the firm's Appellate Practice Group. They serve as column co-editors and alternate writing practical, how-to articles that may be based on the subject of recent decisions from the Colorado Supreme Court, the Colorado Court of Appeals, the U.S. Supreme Court, or the Tenth Circuit. Reader feedback is welcome.
About the Author
Christina F. Gomez is a partner in the Appellate Practice Group at Holland & Hart LLP. She has litigated numerous appeals in both the federal and the Colorado appellate courts—cgomez@hollandhart. com.
The U.S. Supreme Court recently provided much-needed clarity and resolved a federal circuit split on the issue of whether a civil order or judgment is considered "final" for purposes of appeal when the trial court has not yet resolved a pending request for contractual attorney fees. Colorado courts have struggled with similar issues concerning the impact of pending fee requests on finality, and now the rules are different depending on whether a case is pending in federal or state court.
The Supreme Court's decision in Pay Haluch Gravel Co. v. Central Pension Fund demonstrates just how critical this issue is.[1] In that case, respondents, several union-affiliated benefit funds (funds), sought to appeal two judgments entered in the funds' favor, but for less than the amount they were seeking. The first was a judgment on the merits of their claims against a landscape supply company for unpaid contributions under the Employee Retirement Income Security Act (ERISA) and the Labor Management Relations Act. The second was a judgment for costs and attorney fees awardable under both ERISA and the underlying collective bargaining agreement (CBA). The funds waited until the trial court ruled on their fee petition before filing a notice of appeal as to both the merits and the fee issues. The Supreme Court held that they were too late: their appeal was timely only as to the fee issues, but not as to the merits issues, so they were foreclosed from addressing any of the merits issues in their appeal.[2]
Finality in the Federal and Colorado Courts
In both the federal and the Colorado court systems, appellate courts generally have jurisdiction only over final decisions entered by the trial courts.[3] Once the trial court enters a final order or judgment, the clock starts ticking to file an appeal. For civil cases pending in federal court, a notice of appeal generally is due thirty days after entry of judgment or, if the United States is a party, sixty days after entry of judgment.[4] In Colorado court, civil appeals generally are due forty-nine days after entry of judgment.[5] However, there are exceptions where different, sometimes shorter deadlines apply—for instance, in unemployment, workers' compensation, and dependency and neglect proceedings.[6]
Also in both systems, the appeal deadline may be stayed by the timely filing of certain post-trial motions.[7] The appeal deadline then begins anew after the trial court disposes of the last qualifying motion (or, in Colorado court, after the last qualifying motion is deemed denied).[8]
Finally, in both systems the filing of a timely notice of appeal is a jurisdictional requirement.[9] Although the appeals courts have discretion to review late-filed appeals (up to thirty days late in federal court, and thirty-five days late in Colorado court) upon a showing of excusable neglect or good cause, in practice this standard is extremely difficult to satisfy and may not apply to some types of appeals (such as state administrative review proceedings).[10]
The critical issue, then, is when an order or judgment is final for purposes of appeal. Both the federal and the Colorado courts recognize that a decision is final when it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment."[11] In federal court, a final judgment must be set forth in a "separate document," and not merely incorporated into an order addressing other issues.[12] In Colorado court, no separate document is required, but the final judgment must be reduced to writing, and it must be signed and dated by the trial court.[13]
A large body of case law addresses these technical requirements for finality, as well as the related issue of when a decision is considered final where not all issues have been resolved. One of the more challenging issues courts have confronted repeatedly over the last several years is what impact a pending request for attorney fees has on the finality of a judgment on the merits. If the unresolved fee issues prevent the judgment from being final, a party must wait until those issues have been resolved to file its appeal. However, if the fee issues do not impact the finality of the judgment, a party must file a timely appeal on the merits issues, and then later file a separate appeal on any fee issues.
A Bright-Line Rule in the Federal Courts
Under Ray Haluch Gravel, the federal courts will now apply a straightforward, bright-line rule for finality in most cases:
Whether the claim for attorney's fees is based on a statute...
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